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[2013] ZAECPEHC 55
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Absa Bank Ltd v Wilkie (1201/2013) [2013] ZAECPEHC 55 (3 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
CASE NO: 1201/2013
Date heard: 27 August 2013
Date delivered: 3 September 2013
NOT REPORTABLE
In the matter between:
ABSA BANK LIMITED
....................................................................
Applicant
/ Plaintiff
and
PATRICK DOUGLAS WILKIE
.....................................................................
Defendant
JUDGMENT
GOOSEN, J.
The plaintiff seeks summary judgment
against the defendant in respect of two claims in the amount of
R1 335 134.61 and
R18 540.31 together with interest
on each of the amounts as well as an order declaring erf 182
Framesby, Port Elizabeth
specially executable. The debts arise from
credit agreements as defined by the
National Credit Act 34 of 2005
secured by mortgage bonds registered over the immovable property.
The plaintiff previously sought
judgment by default, in support of which plaintiff filed an
affidavit, as required by the Rules,
dealing with various aspects
including that relating to the execution order sought by the
plaintiff. However, prior to the application
being heard the
defendant filed a notice of intention to defend the action. The
application for default judgment was accordingly
abandoned and
instead the plaintiff filed an application for summary judgment
based upon the customary affidavit in which a duly
authorised person
swears positively to the facts pleaded in the summons, verifies the
cause of action and alleges that the defendant
has no
bona fide
defence to the claims. The defendant opposed the application for
summary judgment.
I may mention that neither the fact
of the defendant’s indebtedness nor the extent of such
indebtedness is in dispute in
this matter. The defendant’s
opposition to summary judgment turns upon a very narrow issue.
In its summons the plaintiff alleges
that the defendant is in default of his obligations to effect
monthly payments due in terms
of the said credit agreements. The
following allegations are then made:
10. Prior to commencing
these proceedings, and after the Defendant has been in default of his
obligations arising from the abovementioned
agreement for a period
exceeding twenty (20) business days, the Plaintiff complied with the
provisions of
Section 129
and
130
of the
National Credit Act by
delivering a notice drawing the Defendant’s attention to the
aforesaid provisions of the
National Credit Act, by
Sheriff. A copy
of the said notice is annexed hereto, marked “F1”,
together with a copy of the Sheriff’s return
of personal
service dated 24 April 2013, marked “F2”.
11. The Plaintiff is
accordingly entitled to proceed to enforce the mortgage loan and bond
by virtue of the provisions of
section 88(3)
of the NCA.
12. As such the
Defendant’s debt with the Plaintiff is not under a debt
restructuring order.
13. The Plaintiff has in
the circumstances complied with the requirements of the NCA.
It is these allegations of fact which
are verified by the affidavit filed in support of the application
for summary judgment.
The defendant, in his affidavit
opposing summary judgment, denies that the plaintiff has complied
with the provisions of the NCA.
He states that, although the
plaintiff delivered a
section 129
notice to him in April 2013, the
plaintiff failed to comply with
section 86(10)
and has failed to
establish the jurisdictional facts which entitle it to proceed in
terms of
section 88(3)
of the NCA. That is so because the defendant
applied for debt review and was placed under a debt restructuring
order by the magistrate,
Port Elizabeth on 27 July 2011, which order
incorporated the debts due to the plaintiff.
In support of the granting of summary
judgment plaintiff’s counsel submitted that this court is
entitled to and indeed must
have regard to the content of the
plaintiff’s affidavit filed in support of the application for
default judgment since
this application for summary judgment was
filed after the application, for purposes of considering the facts
of the matter. No
authority was cited for this proposition. I am not
aware of any such authority. In my view, at the stage of summary
judgment,
no regard may be had to any affidavits filed on behalf of
a plaintiff in any prior application for default judgment. A court
considering an application for summary judgment must confine itself
to consideration of the matter upon the basis of the affidavit,
as
contemplated by
rule 32(2)
, filed in support of the application for
summary judgment.
It was further argued that
notwithstanding the defendant’s reliance upon the fact that he
was, at the time of the institution
of proceedings, under a debt
restructuring order, the effect of the notice delivered to him was
to draw his attention to the
fact that he was in default and
accordingly that the plaintiff was entitled to proceed as it did. It
was submitted that apart
from the defendant’s reliance upon
the alleged failure to comply with
section 88(3)
, the defendant does
not allege any facts upon which any defence can be based.
Accordingly, the defendant has failed to establish
a
bona fide
defence to the plaintiff’s claims and summary judgment
should be entered in favour of the plaintiff.
The
section 129
notice annexed to the
plaintiff’s particulars of claim is in standard form. It does
not address the fact that the defendant’s
debts have been
restructured, nor that he is in default of the debt restructuring
order. A reading of the notice suggests that
the drafter was not
aware of the fact that the defendant had already successfully
applied for debt review and been placed under
a debt restructuring
order. In my view therefore the notice in terms of
section 129
dispatched to the defendant does not serve to establish compliance
with
section 88(3)
of the NCA.
It is indeed so that the defendant
does not set out any defence other than that, in the light of the
fact that the defendant was
placed under a debt restructuring order,
the plaintiff has failed to set out facts which found a cause of
action. In my view,
given the particular circumstances of this
matter, the defendant need not have done more. It must be accepted
that the defendant
was indeed placed under debt review and that his
estate is subject to a debt restructuring order which incorporates a
debt repayment
schedule. The plaintiff makes no allegations
regarding this fact; does not allege that the defendant has
defaulted on the terms
of the debt restructuring order and that it
is therefore entitled in terms of
section 88(3)
to proceed to
enforce the terms of the credit agreements upon which it relies (see
Firstrand Bank Limited v Fillis
2010 96) SA 565
(ECP) at par.
16).
In order to establish its cause of
action the plaintiff must allege the jurisdictional facts necessary
to establish its entitlement
to proceed to enforce the terms of the
credit agreements which are subject to the provisions of the NCA.
The defendant’s
opposing affidavit establishes,
prima
facie
, that the plaintiff has failed to do so.
In my view it matters not that the
defendant has not put up any other facts to establish that it has,
apart from the point raised,
any other defence to the plaintiff’s
claim. Although summary judgment may no longer be considered to be
“extraordinary”
(see
Joob Joob Investments (Pty) Ltd
v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at 11G –
12D), it is nevertheless a remedy which is only to be given where
the plaintiff can establish his case clearly
and where the defendant
fails to set up a
bona fide
defence.
In this instance the plaintiff’s
entitlement to prosecute its claim against the defendant is not
clearly established. On
the contrary, the plaintiff has failed to
make any averments regarding its entitlement to proceed in terms of
section 88(3)
of the NCA. In my view that is the end of the matter.
In the result I make the following
order:
a)The application for summary judgment
is refused.
b) The defendant is granted leave to
defend the action.
c) The costs of the application for
summary judgment are to be costs in main action.
G. GOOSEN
JUDGE OF THE HIGH COURT
APPEARANCES: For the Plaintiff /
Applicant
Mr. P. Marais
Instructed by Goldberg & De
Villiers Incorparated
For the Defendant
Mr. B. Dyke
Instructed by Cecil Beyleveld
Attorneys